HomeMy WebLinkAbout1982-0169.Zapp.82-08-19XE CRO:!M EMPLO'IEES CCLLECTIVE BX?GAI?II;,lG ACT
Before
"!iE GRIEVANCE SETTLXMEKT Bc?ARD
Between:
Before:
OL5Eii (Pk. Paul i%pp) Grievor
- anti -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
E.Y. Jolliffe, 0.1. - Vice-Ztaiman ^ 3. Racfman - Member
J . MorrocY - wmber
For the Griever: 7.5. Ca~rT?liUZZO, Zounsel
Golden, Levinson Barristers ar.d Solicitors
For the Em?12yer: M.D. ,>!o::an , L'o,msel
Hicks, Norley, Hami ton, Stewart L Stzrie
Barri,sters and Solicitors
fisarings : June 13 and June 20, 1'38'
DEC ISION
The grievance of Mr. Paul Zapp followed his dismissal
by the Liquor Control Board in March, 1982. He had been Assistant
Nanager of the Board's store No. 554 in Don Mills until suspenoed
on January 20. The case has its origin in the disappearance cf
funds on December 31, 1981, when the griever was Acting Manager in
charge of the store.
.
Grounds for dismissal were stated in the letter (Exhibit
7) to Mr. Zapp from Mr. J.E. Jennings, Director of Stcre Operaticni
dated March 19, as follows:
'Ihis refers to events which have rise to ycur being relieved
from duty by letter of January 20, 1982.
After investigaticn it has been decided that the Card requires
that you reimburse theamount of $1,500.00 found to be missing
in the funds for l&ember 31, 1981.
&cause of this disappearance of fur& and of the cash register
tapes cn other dates and the falsification of records, your
employment with the &;ard is terminated effective March 13, X%32.
It will be noted that the above letter did not accuse :;??
grievor of theft. However, the grounds stated were substantial,
involving the falsification of records as well as the disappaaran??
cf $1,500. The case would be more difficult if the facts :dere in
dispute, but this is no: such a case. All the material facts,
damaging as they may be, are now admitted by the griever. 'The
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proper inferences to be drawn are very much in dispute, as is tF:;- ,
appropriate result.
llhen the disappearance.09 funds was first discovered b':
auditors on January 20,. the griever denied all kncwledge ct ir,
even after it was found that the sales report for December 31
(Exhibit 2) had been falsified, obviously for the purpose of
concealing the loss. On January 22, the grievor gave Hr. Jennings
a letter (Exhibit 10) containing the following statements:
I have hen instructed by my area manager to subnit an explanaticn
as to the discrepancy bXween the cash register tapes and the daily sales report, ard an accompanying cash shcrtage of $1500.90.
I have been going over what occurred on that day and how the hocks
were balanced. It was the day of period erd, and two days prior to
a price change and I was operating the store with one other full
time employee.
Cur sales for that day were slightly more than a norinsl Saturday,
and with the normal duties of period end, @rice change,~ setting up
cash, and doing the ,payroll, I parsonally was guite busy.
I have attempted to uncover what actually cccurred and how the
discrepancy came &cut, but I am unable to account fcr the $1500.00
shortage. A shortage which I as the acting manager accept full resp%sibility for.
I have discussed what could have happened with Mr. French ie: fcrcing
the figures to balance to cash or not accounting'for manual vcids,
both explanations which I would have to discount because it is not
the prescribsz methcd which I would use and I would not miss s;m~:hing
like a manual void.
I can cnly hcpc that the discrepancy will turn up either in the bock
wcrk or in a misplaced envelcpe. Ihat is the cnly rxplanaticn I can
cffer .
I value my positicn with the LCBO ani I enIcy my work. I sinsoral}
hcpe that what has happen& will be cleared up in Yhe very near ?ur>ure.
-4-
Nevertheless, cnz month later (and fcur reeks before
his dismissal) the qrievor offered a more truthful explaniticn.
Acting on the advice of his wife and a friend he scuqht and
obtained an interview on February 22 with Mr. Jennings and his
assis.tant, Mr. C. Ball. He then gave them a hand-written state-
ment (Exhibit 11) which correspcnds closely with his testimcny
at the arbitration hearing on June 18. It is here quoted in full,
because it is --- in his cwn words --- an account cf wh?at hzd
happened and an expressicn of penitence for his failure.to make
full disclcsure at an earlier date:
Gantlemen:
My family and I went thrcugh trying times a.few years back.
With some hard wark and a lot cf understanding we got things back
on track.
lhen cne of the proudest and most satisfying moments of my
life. 1.wa.s promoted to "Clerk 1 - Acting Assistant &nager in a
C store."
Everything was on an upswing: My wife and I were very happy.
Just making ends meet but happy and prcud considering the situation
just a few years prior.
My daughter is in nursery schccl and my scn in junicr
kindergarten.
My wife has an A?vcn rcute in the neighbcurhccd as well as
being treasurer of my daughters nursery schccl.
I was going extremely well cn the jcb: 'Things kept gettiry
bstter. I received word that I would be attending a Xanagement
Seminar at Kem[xnfeldt Bay in January. 'Ihere were rurrcrs cf prc-
motions coming up in February.
aeat: Management Qminar in January - PrsmctG in !Qbr0.ry.
Or so I hoped.
.W excellent cppcrtunity to prove myself cfle when the maaqer
decided to take vacation the last r;erk in Cecember. It would .i2 busy.
I wanted everything to be perrect.
It wasn't to be.
Cn December 31st we were very busy. I was ccunting a de-sit
one of the cashiersd just handed me. llxre was suppcs;d to be
fifty twenties and fifty iens, &fcre finishing my count I was callici
cut cf the cffice by one of the cashiers. 'Ik sme thing had hap@nti
a countless number of times during the Christmas period an3 the week leading up to Rew Year. You would just sit do4 to count a deccsit
ard someone would need you for something else.
I figured I would be out of the office for just a minute so
I placed the deposit in the upper right hand drawer of my desk.
When I got out on the floor there was a custcmar who wanted to
excharqe liqusr for some wine. It taok longer than I expected and
I got side tracked I;r another customer cn my way back to the office.
hhen I finally made it back to the cffice the drawer was empty.
I checked all the drawers. I checked the deposit slips hcpinq
one of the other guys had come across it and put it in an envelcljs. Finally I checked the s&e in the office hoping once aqain that scme-
one had ccme across it and place3 it in there: There was nothug.
I was going to ask if any&e had been in the office. I panicktia.
lhe only thing I could think of was that everything that I had wrked
so hard fcr was going to be lost. So promoticn. No recogniticn. T-L-CC?
there on I just kept ccmpcunding the problem.
I have always wanted to come forward with the truth.
I am so terribly sorry ard ashamed that it tcok me so long to
admit my mistake.
Sargeant Rarry informed me that there were flc grounds for charqes
and that he did not think that I hid taken any money.
Armed with that information it would have been easy fcr a dis-
honest person to cary on with the lie.
I ccme fomard new because I have alwavs kncwn that it is the
right thing to do. Please believe that I did not deliberately inzeni to cause any inconvenience.
The thought of a suspensicn or possible demcacn fcr net prcpzrl)'
safe guarding beard funds was truly terrifyinq. Sc much SC it ilterij.
my thinking at the time.
I am very proud to be an employer of the L.iquir Control Ecar;:.
- 4 -
Nevertheless, cne month
later (arid fcur weeks befsr.2
his dismissal) the griever ofr‘ersd
a mar? truthful explan;ticn.
Acting on tha advice of his wi<e and a friend he scught and
cbtained an interview cn February
22 with ,Vr. Jennings ;~nti ?,iz,
.isslstant, .wr. C. 3311. He then gave th?m a hand-wri::cn sti;s-
ment (Exhibit 11) which corr?spcnds closely with his testlmc""
ar: the arbitration hearing cn Zune 18. It'is Pair5 quit& in L:u1.1
because it is --- in his cwn words --- :ln ;iSc~unt cf wVr,a: tric.1
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I know that I can, and given the opportunity, will
continue to do a gcod job and be an asset to the board.
This past while has been hell to me and has taught me
an invaluable lessen. Truth is the best course despite
the consequence.
Again I am truly sorry and ashamed. I hcpe and pray
'that'you will allow me to continue my employment with the ~'
board and not judge my indescretion (sic) too harshly.
Yours sincerely
Paul Zapp
The only matter of importance omitted~ in the above
statement was the fact that the grievor had falsified the sales
report in an effort to conceal the loss of 51,500. The changes,
however, were so clumsily made that they quickly became apparent
to the auditors on January 20 when they compared the report with
the tapes which recorded the. day's receipts. NO doubt he was
referring to that mistake (among others) when he said that: "Prom
there on I just kept compounding the problem."
In his testimony, however, the grievor was candid about
.the falsification. On Thursday, December 31, he tcld no other
employee about the lost money, but did inform his wife. On Sate-
urday, January 2, he was in the store from 9 a.;n. to 6.15 p.n.
He testified: "I thcught it xa.s too ljte to report it. I '; n e 'X
it would come out eventually, but I couldn't bring myself to ,2-s-
close it at that time." Shown Exhibit 2, he agreed the czsh
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figures were wrong, and said: "I intentionally made changes in
a number of transactions. I did not alter the tapes thar da;)
but had an opportunity to change them. I took 'larks' tape and
changed the resulting figure --- not the tape --- tc reduce t?,a
total by $1,500." Thus the auditors subsequently found tr.3
difference between the tape total and the receipts entered on
Exhibit 2, the daily sales report.
Two other matters were of concern :o management. The
auditors reviewed tapes and sales reports covering a pericd of
several weeks prior to January 20. In a memorandum to ?lr.
Jennings from Mr. .&.I. Hughes, Manager cf Store Audits, (Exhibit
4) the follcwing finding was.repcrted:
ltucugh the course of checking other cash register tapes
it was discovered that the follcwiflg cash register tapes were
missing: Cecenbx 17, 1981 amounting to $7,530.15 and $2.396.65;
December 22, 1981 amounting to 93,446.30, S8,239.75 and $8.790.75
with voids for S156.00; December 29, 1981 amounting to 56.464.30
with voids for $47.10. The store manager, staff and curselves
could not lccate these cash register tapes.
The fact that the audit tapes for three,days in December
were missing gave rise to the suspicion that there could have tieen
ether ,losses, forever unkncwn because such tapes :riere no: avr;:labl?
,fcr ccmparison with daily sales reports. .A possible rsplanarisn
has been offered by the griever. At some tine 113 December a
distillery representative, one Xaclea'n, had billed a customer
for an'order previously arranged, but the customer ref-sid to
iw, claiming he had already made payment at the store. The
grievor testified: "I checked through some tapes but did not
find the sale. The following day the customer came in with the
sales slip. Then we made asecond search and found it." He had
been helped with the tapes by Mr. Jim Watson, a full-time clerk.
d
The witness Harvey Brown, another clerk, knew cf tha
Maclean incident. He had seen Mr. Zapp and Mr. Watson unrolling
tapes and searching for confirmation that the complaining customer
actually paid for the liquorpicked up, which had been crdered in
connection with a banquet permit. According to Mr. Brown (as welL
as the griever) the search took "a whole day," and sometimes tapes
were spread on the flcor. He said one of his own duties was tc
put tapes in bags at regular intervals, staple the bags and place
them in storage. He had never be?- -"re known tapes to be lest. Cn
this point, Mr. Arthur Hughes, the Manager of Store Audits. after
26 years of experience with the L.C.B.O., said he had found tapes
missing on not more than four occasions, and he believed these
were due to the "remodelling of the premises." Ordinarily af
course it is the auditcrs whc review tapes.
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forDecember 17, 22 and 29 ware lost as part of a scheme to conci-al
theft of cash from the L.C.B.O. If the griever had such a sc?.e;r~e,
or any part in it, the all-important tape.s for Cecember 31 :~~oulU
also have disappeared. The existence of that tape made i: pcssib.l?
for the auditors (within 40 minutes of commencing their aildit of
January 20) to discover --- and prove --- a shortage cf $l,jljO.
If the tape had been destroyed, this would be difficult, prcbabl;*
impossible. The inferenc? to be drawn is that the tapes fcr dates
earlier in December were lost, mislaid or misplaced during the
course of the search made as a favsur to Mr. Xaclean and his
customer.
Another matter of concern to management at the L.C:B.C.
was the record of Store No. 55-L. For the 10 periods frcm April ,1,
1981, to January 2, 1982, there was a "net shcrtage" of 59,?ii.75,
being "store stock differences" determined by refsrence tc."the
stcre copy and the records at Head Office Accounting Department
of the store perpetual inventory" (Exhibit 5). There were
shortages of several hundred dollars in each of the first seven
periods, a shortage of S2,145.00 in Pericd NO. 8, an overage of
$142.70 in Period No. 9 and a shortage of 53.783.95 in Perioi~ So.
10. In addition, the audit of January 20 (for the period January
4 to 19) established ahother shortage of $1.732.50.
- LO -
Manager at the time, !lr. N.H. Webb, whc was away on vacaricn
from December 22, 1981, to January 4. 1982. . However, other
stores also have shortages and Mr. Webb said of the figures for
his store: "I don't now consider they were high." The auditor
of January 20, Mr. Creighton French, said they htd been "wzy cu:
of line" for such,a small operation. He would have expected to
find shortages of "only five or six hundred." Further, :4r. Franc?
reported several errors or irregularities in prccedures at the :
store such as "cash tapes not folded," or "no signatures on voids"
and "inadequate supervision at lunch time." If these suggest ;n
operation lacking in efficiency, the grievor as Assistant Yanager
can be held partially but not solely responsible. Also worthy of
note, several employees at the store in December were part-timers,
taken on to cope with the rush in that season, and it is not t;
be expected that their efficiency would equal that of full-time
experienced clerks.
The mcst impcrtant finding made by the Auditors, :l?sszs.
French and Periora, was reported in writing on January 21, (E;t).,ibi:
3) as follows:
The following cash, tap had an unacccuntable discrepancy. k-cemter
31, 1981. Tape read $12,135.50. Daily sales read j10,635.50.~ Short
$1,500.00. Cashier does not recollect any discrepancy. !XookerFr (sic)
has no reason for changing entry dces not recall any discrep,inc;.
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It was .also reported of course to Mr. Hughes that :t.s
Daily Sales Report, Exhibit 2, signed by Nr. Zspp, had been
altered in several particulars; including the falser figure for cas~i
s3.1e.s .~ Entries appear to have been made with a pencil, not a pen,
a practice which seems questionable:
We turn now to the evidence relating to events on TP,ilrz-
day, December 31. witnesses have agreed that December 2&, the di:/
before Christmas, had been the busiest day of the year:, December
31 came second. It is a self-serve store, but at 2.30 p.m. all
the staff were fully occupied. Three part-time clerks Were serving
as cashiers: other employees were hnndling stock from storage.
Mr. Zapp was in the Manager's office, which is directly in line
with the cashiers' stations. The curtains were not clcsed over
the office WindGWS, so that CustGmers in line as well as.the
cashiers could see into. the office 'and probalby glimpse the twc
desks therein.
During the period in question no other witness had Yr.
in view, which is natural since all other employees were vir;
busy.
There is no reason to disbelieve the qrievcr's acccun
what occurred.
At about 2.30 a part-time clerk n;fim?d Marks br;cgb,
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the office a pa,ckage of $1,500 in cash. This is the usual orccz,l:?;
it is not appropriate that any cashier shculd have much mere thin
$1,500 on hand. Thus, on a busy day, the Manager or Assistant
Manager would receive as many as eight Gr nine visits.frcm c6s?,:~s
seeking to turn in their excess cash. It would then be the d.uty of
the recipient to count and record the money and put i: :n rhe offiei-
safe. Normally the cash is picked up by arinks tt,e next day for
deposit in a bank. bl
While counting, the griever was called by >1s. Linda Wells,
the cashier nearest tG him. She drew his attention to a custGm2r
who had brought back some liquor but wished to exchange it for
wine. As a part-time cashier, she was not qualified to conduct
such a transaction. In any event she was busy with ether custcm?rs
and the full -time clerks were otherwise engaged. Possibly ths
grievor was a little flustered by his responsibility as acting
manager and by the rush of business that day. Possibly' 51s~ 1h.e
was anxious (as L.C.B.O. emplcyees are ,encouraged tc be) to satisf:2
an eager customer. Whatever the reason, he did not finish the
count but thrust the money into a drawer of his desk, which he
claims cannot be locked.
It turned out that the customer wanted advice abcur wine:-,
as wine-purchasers sometimes iic, and detained the yrizvor far ab3..1t
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15 minutes at the wina-shelves. On the way baclctc the cffice
the grievor was intercepted briefly by ancther custcmer. Tt;* fir;:
customer brought a cartload of wine to the office where an exchange
was arranged and he paid the difference between the new purchase
and the former purchase. But when the grievor looked in the
drawer of.his desk, the money was gone.
Apparently the griever did not suspect other employees:
he did not mention the loss to any of them. .He was undoubtedly
conscious of his negligence in leaving'the money where he did ---
with the'curtains open, one door open, and the desk in plain vie;+
of the public. He had received ample wartiing of the risks in a
circular (Exhibit 81 addressed by the L.C.B.O. to all store managers
on September 23, 1981, --- about three months before December 31.
It was as follows;
I&: Safeguarding Board Funds
Recently there was an incident of theft in one of cur stcres.
'lho persons working tcgether were able to steal cash frcm the cffice
of the store. Wile the employee in charge of the stcre was pre-
paring a deposit, he was lured Lrom the office by a p-arson !mo
feigned an injury.~
Ox employee put the money in a desk drawer and went !<ith t!.e
custcmer to investigate the alleged accident. In i-h abbsace fr;m
the office, the accomplice of the first person enter& the cffic?
and took the fur& frcm the desk drawer. Both men flcxl <run th? itx?.
It is Eaard plicy that funds shculd never hz left unatten%ti unless they are secured in the lsckcxi store s;lrz or lock& cz&
register.
- l.l -
Money is never tn t.~ kept in an unatte@& desk drawer cr
cash drawer.
The circular ought to have mentioned that the curtains
on the windows of an office shpuld always be drawn closed widen
money is being counted. It is folly to go thrcugh that exercis2
in full wiew of customers --- cf whom there would be many in the
vacinity on the afternccn of N2w Year's Eve. This. lessen ---
among many others --- can be learned from Mr. Zapp's experience cn
December 31, 1981. It assumes special importance in'view cf the
fact that most L.C.B.O. sales are transacted on .a cash basis. E\'n
Store No. 551 --- one cf the small outlets --- could take in as m,uc?.
as $1,500 an hour on a busy day, a tempting target for larceny.
Nevertheless, the circular had explicitly warned man;qe!:s
that "money is never to be kept in an unattended desk draw2r cr
cash drawer." Mr. Zapp's treatment of the money on December 31 was
a violation of that rule and amount2d to extreme negligence, hs
shown by the disastrous result. It was grave misconduct, as th2
grievor himself seems tc hav2 realized at the time.
We cannot ccnclude, --- as the emplcyar's c~unsrl
suggested in argument --- that "the evidence points :a :he?t" 0)
the griever. There was certainly theft that a-tzrnczn, bcr '4~
think the griever's testimony IS cr2dible --- weigh&i by its
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content and also his demeanour. So other evlilence suppcrts an
inference that the grievor himself tcok the money. W.hat ,kas been
established is that the grievor was guilty cf negligence, fcr rwhich
he and his family have already paid a heavy price.
Much more serious was the grievor's behaviour after the
loss of.the money. Clearly, he was stricken by panic and despair.
knowing that the.event jecpardized his hopes and ambitions. 1:
was not misconduct to be panic-stricken, butthesteps he took,
futile and irrational though they were, did constitute grave mis-
conduct.
On January 2 Mr. Zapp spent the day at the store, pre-
pared and signed the daily sales repcrt for December 31, in which
he deliberately under-stated cash receipts by S1.500. He see~ls tc
have done this act of folly in the hope of postponing the day -when
his negligence would be exposed. At the time his character was
not suficiently strong to make full disclcsure. His "fixing the
books" was ineptly executed. He did not lose or destroy the audit
~tape ior December 31 and left Exhibit 2, the daily sales report,
in a condition almost certain to draw attention and prcvcks sus-
picion. He had mere than enough esperience to knew that the auz;;r-
tors would be visiting :I-,* stcre in January and wculd przbzbly
compare Exhibit 2 with the tape fsr tha: &y. I " I; " r v 1 i :+ i: 1 .i
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misconduct on January 2 was that cf a very ccnr'used anti frigh:sntc
young man,
not the wcrk or‘ a calculating thief.
Between January 2 and 20, the griever did ncthing tc
disclose the loss. Apparently he hoped that by gocd luck in Swica?L5
never come to light. At the same time he must have kncwn this was
unlikely. He was out of town on a management training course 'when
he received telephone ca$ls about the auditors' findings. Eo t.?,
on the telephone and after returning to Torcntc he denied kncwlaege
of the loss. .4s he said later in his statement of February 22:
"I just kept compounding the problem." The real problem of cocos
was his failure to report the loss on December 31.
In argument at the hearing of June 30, ccunsel fcr t?e
employer referred to the three reasons given for discharge in :.!r.
Jennings' letter of March 13, which was quoted at the cutset cf
this decision. These were the disappearance of funds on December
31 and of the cash register tapes on other dates and also the
"falsification of records."
Plr . Moran said that each one cl thas?
reasons standing alone would justify discharge. The qrievor was
an Assistant Manager and his cfr'ences were mere srrious,rnan if
he had been a Clerk 3.~
As fcr the loss cf money, Nr. blcran pGin:i-d jut tha~lt
the griever had not followed the proper procedure for safegu.ar5in.q
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Beard funds, P,e t;ad failed to report the loss and failed to qurs~l::?
other emplcyees so that all opportunities to recover tP,e money
were lost. Falsiiica:ion of records occurred two days after, 1:
was deliberate and involved changes in the number of traosac:Lcns
aswellas the amount of cash receipts. Thereafter, the griever
'lied about it from January 20 to February 21. A11 this cast dcubc
on his explanations and such evidence pointed to theft by himself.
Mr. Moran cited Bernardi, LO2/79, anothergcase in which a stcre
manager had falsified records.
It was also said that although the standard cf prcof in
this proceeding was lower than in a criminal prosecution it would
be higher than in a civiL.case. He referred to the recent
judgment of ~Laskin C.J. in Continental Insurance Co. v. Daltcn
Cartage Co. Ltd. (1982) 131 D.L.R. (3d) 559. Cn the balance of
probabilities, it should be concluded that the grievor himself
took the funds. Mr. Moran said the disappearance of tapes fcr t%r+a
dates earlier in December meant there cculd have been other l~ssrs.
For the grievor, Mr. Cavaliuzzo submitted that clear in;
convincing proof was required of such a serlcus offence as ti.2 r?.*f:
suggested by >lr: Noran. The "baiance cf probabilities" was a
"flexible concept, " anti he cited Doualas, lOd,'YO ae page 9 ani :?.s
Tcrcntz Hydrc case (1373) 19 G.R. (?dl 2-i.: 3: p2ge 2.16.
. i.
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Counsel also discussed in some detail the evidence
relating to the~threa missing tapes, the loss Of $1,500, the falsi-
fication of the figures on Exhibit - 7 and the grievo'r's subsequent
behaviour.
Mr. Cavalluzzo submitted that intent to defraud had not
been proved. What had been established. was negligence and':'a bad
mistake," but the grievor became candid and forthright in his Ximis-
sions to Mr. Jennings on February'22 and in his testimony befo.ra
this Board. Thus the case was different frcm that cf Bernardi,
who had refused-to admit guilt. Moreover, the grievor gave every
sign of sincere contrition, which was consistent with his character
and previous record.
We have already indicated our view of the proper infer-
ences to be drawn from the evidence in this case. The resulting
conclusions may be summarized as follows:
(11 There is no evidenceofwrongdoing on the part cl
the grievor in ccnnection with the missing tapes of December 17,
22.and 29. Significantly, Mr . Zapp was off duty on December 22.
He was not the cnly employee whc had access to tapes. Indeed, :Yr.
Brcwn states that it is his handwriting which appears on bags Ccn-
taininq tapes for two weeks in December. It was na:urs1 tu^ suscec:,
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that there might be a link between the missing tapes and the
,money lost on December 31, but if the grievor Chad a scheme lsr
concealing losses by destroying tapes, he would surely have got
rid of the tape for December 31. His failure tc do so negatives
the suspicion. It seems probable that the three,tapes were lost.
during the search provoked by Mr. Maclaan.
0 (2) Evidence is totally lacking that the griever him-
self made away with the $1,500 lost on December 31. His guilt cn
that day cannot be inferred from his deplorable conduct on Jan-
uary 2 and later. The only evidence as to the loss is that cf the
grievor himself, and there is nothing to contradict it. His cred-
ibility has been challenged because of the lying he subsequently
did, but there are other factors which make his explanaticns
plausible. He was, as he said, doing well at his job. He had been
promoted and expected another promotion; it is significant that he
was selected for a management course in January. Aged 33, he. had
two children and a wife who worked. In that context it seems
improbable that he would risk his whole future by stealing wha:
amounted to less than one months's. pay. The identity of the yhi2-l
may never be known, but the circumstances bear a remarkable rriem-
blance to those described, in the Management circular of September
23, 1981, quoted earlier in this decisicn. Unfcrtunately fcr !lr
Za,PP. he had faiird to takti he& of! that warning. He was gui I,t,:
of negligence.
- 20 -
(3) Far more serious than the grievor's negligence cn
December 31, was his misconduct thereafter. The falsificaticd of
Exhibit 2 and the false statements made'later certainly suppori
the employer's view that he was not a trustworthy employee. In
his defence, it has been pointed out that he eventually made full
disclosure, does not attempt to justify his actions and is
appropriately contrite. This panel of the Board has had the
advantage of hearing and watching yr. Zapp testify at considerable
length. It is always difficult to assess the credibility cf a
witness in such a positicn. On balance, however, we think he was
telling the truth when he testified on June 18.
We have been asked to decide the issue on "the balance
of probabilities," which is a legal, not a mathematical concept,
but calls for the exercise of common sense and some understanding
of human nature. The legal aspect was canvassed by Laskin C.J.
in Continental Insurance, supra, who said among other things:
"There is necessarily a matter of judgment involved in weighing
evidence that goes tc the burden of proof, and a trial Judge is
justified in scrutinizing evidence with greater care if there are
serious allegations to be established by the proof that is cfcered.;'
He then quoted with approval the words used by Lord Denning in
Bater v. Bater .(1950) 2 All E.R. 458 at page 459.
- 21 -
It is true that by our law there is a higher standard of prccf in
criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case.
In criminal cases the charge must be proved beyond reaaonable dctit,
but there may h degrees of proof within' that standard. Many grezt
judges have said .that, in proportion as the ,Crime is enormcus, SO
ought the prcof to be clear. So also in civil cases. Tl-e case
may be prcved by a prepcrderance of probability, ,but there may be
degrees of probability, within that standard. 'lbe degree depznjs
cn the subjectmatter. .4 civil court, when considering a charge
of fraud, will naturally reguire a higher degree of probability than
that which it wculd require if considering whether negligence were
established. It dces not adopt so high a degree as a criminal
court, even tien it is consideriq a charge of a criminal nature,
hA still it does require a degree of probability which is ccmmen-
surate with the occasion. [
It must be kept in mind that although theft by the employee
has been suggested or alleged, we are here engaged in a civil prc- .
ceeding, not a criminal prosecution. The'words of Lord Denning
and the Chief Justice are therefore applicable,~ including the
statement that when considering a charge of a criminal nature, a
degree of probability is required "which is commensurate with the
occasion. ”
One the whole, we conclude on "the balance of ,probabiliti
that the griever's mistakes and misconduct did not spring from an
intent to defraud his employer. We have found there was negligence.
there was an indefensible falsification of the record, and there :r'iz
a dishcnest attempt to deny knowledge of the truth. ,411 these
amounted tc grave missondust, but we do not think they bstsksn 2
fraudulent design. On the contrary, CO be blunt about ihe m?l~cez
l . i
.
we consider they were due tc ineptitude or incompetence and a
certain weakness of character. It does not follow that the grle~,~or,
having manifested such~weakness, should be punished as though he
were in fact a thief.
By Section 18(Z) of the Crown Emplcyees Collective 2ar-
gaining Act,: it is provided that
“where the Grievance Settlement
Board determ’ines that a disciplinary penalty or dismiss~al of an
employee is ,excessive, it may substitute such other penalty fcr
the discipline or dismissal as it’considers just and reasonable
in all the circumstances.”
In our view the penalty imposed in this case was
excessive and there must be a different penalty. Having regard
to the gravity of the misconduct proved and admitted, we conclude
that a suspension of six months without pay would be appropriate.
Further, while we think that the grievor is capable of proving
himself to be a loyal and useful employee, we are not prepared
to direct that he be reinstated as an .4ssistant Manager. Our
decision is that he shall be again employed cn or before !Icnday.
September 201 1982, at a level not lower than that of a Clerk
Grade 4.
Dated this 19th day Of .4ugust, 1982
/’
‘: 7
E.9. Jolliffe ,..I - Vice-Chairaan
we consider they were due to ineptitude or incompetence and a
certain weakness cf character. It does not follow that the grie5:c.r
having manifested such weakness, should be punished as though he
were in fact a thief.
By Section lS(2) of the Crown Employees Collective Bar-
gaining Act, it is provided that "where the Grievance Settlement
Board determines that a disciplinary penalty or dismissal of an
employee is excessive, it may substitute such other penalty for
the discipline or dismissal as it considers just and reasonable
in all the circumstances."
In our view the penalty imposed in this case was
excessive and there must be a different'penalty:- Having regard
to the gravity cf the misconduct proved and admitted, tie conclude
that a suspension of six months without pay would be appropriate.
Further, while we think that the grievor is capable of proving
himself to be a loyal and useful employee, we are not prepared
to direct that he be reinstated as an Assistant Manager. Our
decision is that he shall be again employed on or before Monday
September 20, 1982. at a level not lower than that of a Clerk
Grade 4.
Dated t~his 19th day
of August, 1982
,-
E.B. Jolliffe Vice-Chairman